Shortly after 7:30 on a Saturday
morning in late November, a Canby police officer was driving north on Highway
99E when he observed defendant, the front-seat passenger in a southbound car,
look at him and then lean back quickly in his seat as if to hide. The officer
turned around and followed the car for two and one-half miles. The officer
testified that he pulled alongside the passenger side of the car and that,
despite the early hour, there was sufficient light for him to observe that
defendant bore several unidentified tattoos and wore clothing indicative of
membership in a gang. The car's driver eventually committed a traffic
infraction, and the officer pulled the car over, approached the driver, and
asked him for his driver's license and registration.

The officer's
focus then turned to defendant, who was pretending to be asleep. The officer
recognized defendant's clothing and tattoos as consistent with those of members
of the "13th Street" gang, which is also known as the "Sureņos"
gang. The officer, who had received gang enforcement training, testified that
he had previously encountered Sureņos gang members who were armed and that he
had recently removed three guns and several knives from Sureņos gang members. The officer also testified that, during the
stop, his "number one concern" was for his safety.

After observing defendant's tattoos
and clothing, the officer told defendant that he knew that defendant was awake
and asked him to sit up. Defendant continued to feign sleep and did not move
his head; however, defendant's hands started to move. The officer testified
that he told defendant, "Hey, dude. I know you're awake. Look over [at]
me and talk to me." In response, defendant sat up and looked at the
officer with "a thousand-yard stare," which the officer characterized
as "a very menacing look." The officer testified that he then
noticed that defendant bore other tattoos that were consistent with membership
in the Sureņos gang. At the same time, defendant's hands moved toward the
car's center console, behavior that the officer characterized as
"indexing" and that he noted often occurs when a person who has
"something that they want to hide" unconsciously directs his
attention to the object or objects he wants to conceal. Consequently, the
officer believed that there was a weapon in the car.

The officer instructed defendant to
place his hands on the dashboard and not to move until the officer granted
permission to do so. The officer then asked defendant if he knew his driver's
license or identification number. Defendant told the officer that his
identification was in his wallet and asked the officer whether he had
permission to retrieve it. The officer responded affirmatively and, after
defendant handed him identification, reminded defendant that he should place
his hands on the dashboard and not move until the officer returned. The
officer then returned to his car and conducted a warrant check.

As the officer awaited the results of
the warrant check, he noticed that defendant was looking at him in the car's
rearview mirror and that defendant's hands were no longer on the dashboard but
rather were moving about in a manner that caused the officer to believe that
defendant was trying to conceal something. The officer went to defendant's
door, opened it, and asked defendant to get out of the car and whether he was
armed. Defendant hesitated and moved his hands to his waist and then to the
corner of the center console, prompting the officer to call for backup.

Defendant eventually got out of the
car, and the officer told him that he needed to do a patdown to ensure that
defendant was not armed. Although the officer asked defendant to place both
hands behind his back as part of the patdown, defendant placed only his left
hand behind his back and placed his right hand in his pants pocket area. When
the officer attempted to place defendant's right hand behind defendant's back,
defendant "tensed up," but he allowed the officer to remove his hand
from his pocket area. The officer then placed both of defendant's hands behind
defendant's head.

When the officer's patdown search
reached defendant's waistband, defendant placed his right hand atop the
officer's hand and the officer pushed defendant against the side of the car. A
struggle ensued, revealing a gun in defendant's waistband. During the
struggle, the gun fell to the ground. After the officer subdued and handcuffed
defendant, he retrieved the gun and conducted a search incident to arrest. He
discovered a glass pipe, a forged social security card, and ammunition.

As noted, in his pretrial motion,
defendant moved to suppress all physical and derivative oral evidence, arguing
that he had been seized when the officer told him to "look over [at] me
and talk to me." Defendant contended that, at the time that the officer
made those statements, he lacked reasonable suspicion that defendant had
committed a crime or constituted a threat to his safety. The state responded
that no stop occurred until the officer told defendant to place his hands on
the dashboard and that, at that time, the officer reasonably suspected that a
crime had been committed and that his safety might be in jeopardy. The trial
court granted defendant's motion to suppress, explaining:

"At the traffic stop, [the officer] obtained the
license and registration from the driver and[,] instead of proceeding with the
traffic stop and issuing a citation, [the officer] focused on Defendant. The
character of [the officer's] asking Defendant and then telling Defendant to sit
up and talk to him is sufficient to constitute a stop under State v. Walp,
65 Or App 781[, 672 P2d 374] (1983)."

The trial court then discussed whether the officer had had a
reasonable concern for his safety at the time of the patdown and, after explaining
that he had not, concluded:

"The Court finds that there wasn't a threat
to the officer until after * * * defendant was ordered out of the vehicle and
the officer attempted to 'pat down' * * * defendant. Nor did [the officer]
have a reasonable suspicion a crime had occurred at the time of the stop.
Therefore, Defendant's Motion to Suppress is granted."

The court then entered a suppression
order that provided, in part:

"The court finds through an opinion letter
* * * that [the officer] asked, and then told * * * defendant to sit up, which
constituted a stop. [The court] also found that[,] under the totality of the
circumstances, [the officer's] belief that * * * defendant posed an immediate
threat of physical injury was not objectively reasonable at the time that the
stop occurred."

On appeal, the state contends that
the trial court erroneously granted defendant's motion to suppress because the
officer's safety concerns were objectively reasonable. Defendant responds
that, because the state has not challenged the trial court's determination that
the officer's safety concerns arose during an unlawful stop, this court must
affirm. See Roop v. Parker Northwest Paving Co., 194 Or App 219, 236,
94 P3d 885 (2004), rev den, 338 Or 374 (2005) ("[W]here [appellants]
fail to challenge the alternative basis of the trial court's ruling, we must
affirm it."). At oral argument, the state explained that, in its view,
the trial court's order is based solely on its conclusion that the officer's
safety concerns were not reasonable. We disagree with the state.

We need not reach the state's
argument that, when the patdown occurred, the officer had objectively
reasonable concerns for his safety, because the state has not challenged the
trial court's conclusion that defendant was stopped, without reasonable
suspicion, when the officer told him to "look over [at] me and talk to
me." That unchallenged conclusion is an independent basis for affirmance
because, absent a showing of attenuation or independence from the illegal stop,
the officer's post-stop observations that informed his safety concerns must be
suppressed. See State v. Hall, 339 Or 7, 27, 115 P3d 908 (2005)
(describing circumstances where evidence obtained in violation of a defendant's
rights under Article I, section 9, of the Oregon Constitution is admissible).

At oral argument, the state argued, for
the first time in this appeal, that, even if the trial court correctly
concluded that the officer, without reasonable suspicion, stopped defendant by
instructing him to "look over [at] me and talk to me," legitimate
safety concerns existed at the time of the stop. We will not entertain a new
argument asserted for the first time during oral argument before this court. See,
e.g., State v. Jones, 184 Or App 57, 60 n 2, 55 P3d 495 (2002)
("At oral argument, defendant contended for the first time on appeal that
the charged offenses were not of the same or similar character. Because
defendant did not raise that issue in his opening brief, we decline to reach it
here."); State v. Wrenn, 150 Or App 96, 100, 945 P2d 608 (1997)
(where the state did not make an argument to the trial court, the defendant did
not have an opportunity to respond to that argument, and the state did not
raise that argument in its brief to this court, the court would not consider
the argument).

Affirmed.

1.We express no
opinion on the correctness of the trial court's conclusion that the officer's
directive constituted a stop.